The defence of the four men charged with murdering eThekwini municipality ward 101 councillor Siya Mkhize and Mzukisi Nyanga has suffered yet another blow after the Durban magistrate's court dismissed an application seeking to have the accused moved from Kokstad to Westville prison.
The four are ward councillor Mkhipheni Ngiba, 46, Nkosinathi Ngcobo, 38, Sandile Mzinzi, 40, and Vincent Mlondo, 37.
All of them face a string of charges which include conspiracy to commit murder, attempted murder and possession of firearms. Bail was refused for all the accused in August.
Mkhize was gunned down in Cato Crest while campaigning for the past local government elections. He was touted by the ANC as a councillor candidate for the ward.
After Mkhize's death, Ngiba became the councillor for the volatile ward.
Magistrate Vanitha Armu said after hearing all the arguments before court, it was her view that the court did not have power to hold an enquiry for the accused to be brought back to Westville prison.
She said according to the Correctional Services Act, incarceration is at the discretion of the correctional services department. This takes into account the interest of justice and the rights of the accused.
“The long and short of this is that the court does not have the power to order the accused to be brought from Kokstad to Westville,” said Armu.
Advocate Roshan Dehal, who represents Ngiba and Ngcobo, said detention of his clients at the Kokstad prison had brought challenges.
He said the Kokstad incarceration had not only proven to be costly to the Durban-based families of his clients, but had also presented the challenges for consultation because of the distance.
“The drive to Kokstad prison can take up to three and a half hours. With that, one has to go through the administrative processes associated with entering a prison,” said Dehal.
He said his clients had the right to a fair trial.
Dehal also bemoaned the unsatisfactory conditions in which his clients claimed to be kept in.
Two of his clients are said to be “critically” ill, with Ngiba suffering from gout and a heart ailment while Ngcobo is reported to have a heart condition and depression.
The court heard how Ngiba’s wife, who sometimes buys medication, has encountered problems in getting the supplementary medication to Ngiba with his move to Kokstad.
“The accused exist in a solitary confinement type of set up where there are also concrete blocks. Their rooms are far away they have to shout at the top of their voices to get the attention of prison officials,” he said. This, he said, infringed on the accuseds' constitutional rights. Dehal's views were echoed by defence attorney Lindo Mthembu, representing Mzinzi.
State prosecutor Elvis Gcweka told the court that he held no personal views on the matter. He said the move to have the accused detained in Kokstad had been the done by prison authorities. He cited the high police presence in court as among some of the reasons why bail was refused for the four accused. He said another aggravating factor lay with the discovery of a cellphone in the possession of Ngiba in prison. The cellphone is still in the hands of the police.
“There are also threats to the witnesses in this matter,” Gcweka.
The matter was adjourned to November 10 for the purposes of serving an indictment.
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